Restrictions to the free movement of persons

Restrictions to the free movement of persons

1. Public policy

   • Van Duyn - Church of Scientology
   • Rutili v Ministere del' Interieur - stricter approach - serious threat
   • R v Bouchereau- must affect one of the fundamental interests of society
   • Must satisfy Both of the above tests
   • Adoui and Cornuaille v Belgium (prostitution) cf Van Duyn
   • must be based on the personal conduct of the individual Article 27(2)
     • R v Bouchereau (the existence of a criminal conviction could only be taken into consideration in so far as the circumstances that led to that past conviction were evidence of ‘personal conduct ), Bonsignore (shot brother), Calfa (Greece

2. public security

   • Tsakouridis- drug dealer
     • 1) foreign relations or military interests - security 2) assessed on case by case basis 3) public security not confined to these - include internal matters

3. public health

   • D. 2004/38

4. Measures that can be adopted against nationals of other Member States

   • Partial restrictions: Rutili
     • Olazabal, the ECJ held that a Member State could impose limitations on the right of residence within its territory provided that: - Such action if justified by reasons of public order or public security based on the individual’s conduct; - The only alternative course of action, given the seriousness of that conduct would consist of a measure prohibiting the individual from residing in the whole of the national territory; and - The conduct which the Member State concerned wishes to prevent gives rise, in the case of its own nationals, to genuine and effective measures designed to combat it.
   • Expulsion: Switzerland case, Permanent exclusion: Calfa
     • Article 28 Directive 2004/38: imposes limitations on Member States’ freedom to expel EU nationals
       • Orfanopoulos: : respect for family life. Reference to Article 8 ECHR
   • Procedural rights- enjoyed by MS nationals where free movement rights are restricted
     • Temporary residence: Directive 64/221
     • Rights of defence Article 31(1) of Directive 2004/38 Santillo case; Article 9(1) of Directive 64/2211